Com. v. Johnson, D. ( 2018 )

J-S37038-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DARRYL JOHNSON :
:
Appellant : No. 3586 EDA 2017
Appeal from the PCRA Order September 29, 2017
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0000835-2013
BEFORE: OLSON, J., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 24, 2018
Appellant Darryl Johnson appeals from the order of the Court of
Common Pleas of Delaware County dismissing his petition pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Defense counsel
has filed a petition to withdraw his representation. After careful review, we
grant counsel’s request to withdraw and affirm the PCRA court’s order.
On October 19, 2012, Appellant and his co-defendant, Phillip Freeman,
were arrested in connection with the armed robbery of the victim, David Davis.
After a jury trial on February 4-6, 2014, the jury convicted Appellant of
conspiracy to commit robbery (threaten serious bodily injury) and firearms
not to be carried without a license. The trial court convicted Appellant of
persons not to possess a firearm.
On April 24, 2014, Appellant received an aggregate sentence of 54-120
months’ incarceration to be followed by ten years’ probation. After Appellant
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S37038-18
filed a timely appeal, this Court affirmed the judgment of sentence on
February 2, 2015.
On December 14, 2015, Appellant filed a pro se PCRA petition. The
PCRA court appointed Scott D. Galloway, Esq. to represent Appellant. After
receiving several time extensions, counsel filed an amended PCRA petition on
March 15, 2017, claiming Appellant’s trial counsel was ineffective for failing to
make a purported plea deal known to Appellant. The Commonwealth lodged
an answer in which it cited to notes of testimony from the April 1, 2013 hearing
during which Appellant was informed on the record of the Commonwealth’s
negotiated guilty plea offer.
On May 11, 2017, the PCRA court entered an order notifying Appellant
of its intent to dismiss his petition without a hearing pursuant to Pa.R.Crim.P.
907. On June 1, 2017, Appellant filed a response to the Rule 907 notice,
arguing, inter alia, that PCRA counsel was ineffective for failing to raise several
other allegations of trial counsel’s ineffectiveness. On July 20, 2017, the PCRA
court held a hearing that focused on Appellant’s assertions of PCRA counsel’s
ineffectiveness for not raising certain issues.1
____________________________________________
1 As Appellant was represented by counsel, the PCRA court was not required
to consider the issues that Appellant raised in his pro se Petition. It is well-
established that a criminal defendant “represented by counsel is not entitled
to ‘hybrid representation’— i.e., he cannot litigate certain issues pro se while
counsel forwards other claims.” Commonwealth v. Tedford, 598 Pa. 639,
960 A.2d 1, 10 n. 4 (2008). See Commonwealth v. Pursell, 555 Pa. 233,
724 A.2d 293, 302 (1999) (holding that “the decision whether to allow such
hybrid representation is within the sound discretion of the trial court … [w]e
-2-
J-S37038-18
On July 26, 2017, the PCRA court entered an order notifying Appellant
of its intent to dismiss the claims raised in his pro se response. The PCRA
court granted Appellant’s request for additional time to respond to the more
recent notice of dismissal. On September 21, 2017, Appellant filed a response
to this more recent Rule 907 notice. On September 29, 2017, the PCRA court
filed an order dismissing Appellant’s amended PCRA petition filed by counsel
and his pro se responses to the Rule 907 notice.
On October 27, 2017, Appellant filed a timely, counseled appeal through
Atty. Galloway, who complied with the PCRA court’s direction to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Thereafter, however, Atty. Galloway filed a petition to withdraw his
representation and a brief relying on Anders v. California, 386 U.S. 738, 87
S.Ct. 1396, 18 L.Ed. 493 (1967). Appellant did not submit a filing to respond
to counsel’s request to withdraw his representation.
As an initial matter, we must evaluate counsel’s petition to withdraw his
representation:
Counsel petitioning to withdraw from PCRA representation must
proceed ... under [Commonwealth v. Turner, 518 Pa. 491, 544
A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 213____________________________________________
will not require courts considering PCRA petitions to struggle through the pro
se filings of defendants when qualified counsel represents those defendants”);
see also Commonwealth v. Williams, 151 A.3d 621, 623 (Pa.Super. 2016)
(indicating “[i]n this Commonwealth, hybrid representation is not permitted....
indeed, pro se motions have no legal effect and, therefore, are legal nullities);
Commonwealth v. Willis, 29 A.3d 393, 400 (Pa.Super. 2011) (finding the
PCRA court erred by allowing permitting dual representation during the
disposition of the petitioner's PCRA petition).
-3-
J-S37038-18
(Pa.Super. 1988)] and ... must review the case zealously.
Turner/Finley counsel must then submit a “no-merit” letter to
the trial court, or brief on appeal to this Court, detailing the nature
and extent of counsel's diligent review of the case, listing the
issues which petitioner wants to have reviewed, explaining why
and how those issues lack merit, and requesting permission to
withdraw.
Counsel must also send to the petitioner: (1) a copy of the “no
merit” letter/brief; (2) a copy of counsel's petition to withdraw;
and (3) a statement advising petitioner of the right to proceed pro
se or by new counsel.
Where counsel submits a petition and no-merit letter that ...
satisfy the technical demands of Turner/Finley, the court — trial
court or this Court — must then conduct its own review of the
merits of the case. If the court agrees with counsel that the claims
are without merit, the court will permit counsel to withdraw and
deny relief.
Commonwealth v. Doty, 48 A.3d 451, 454 (Pa.Super. 2012) (quoting
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007)).
We note that defense counsel has filed his petition to withdraw on the
basis of frivolity pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed.2d 493 (1967). Although Anders briefs are filed by counsel
who wish to withdraw on direct review, we will accept counsel’s Anders brief
in lieu of a Turner-Finley letter, as an Anders brief provides greater
protection to criminal defendants. See Commonwealth v. Fusselman, 866
A.2d 1109, 1111 n.3 (Pa.Super. 2004).
After reviewing the record and counsel’s petition to withdraw, we find
that PCRA counsel has complied with the technical requirements of Turner
and Finley, supra. In his appellate brief, PCRA counsel detailed the nature
and extent of his review, listed an issue of arguable merit, and explained why
-4-
J-S37038-18
he believed the claim was frivolous. Counsel indicated that after his own
independent review of the record, he could not identify any meritorious issues
that he could raise on Appellant’s behalf. Moreover, counsel attached his letter
to Appellant specifically indicating that he believed that the appeal was wholly
frivolous for the reasons set forth in his brief and notifying him of his right to
raise additional points for consideration by proceeding pro se or with the
assistance of privately retained counsel. See Commonwealth v. Muzzy,
141 A.3d 509, 511 (Pa.Super. 2016) (citing Commonwealth v. Friend, 896
A.2d 607 (Pa.Super. 2006)).
We now consider the issue of arguable merit PCRA counsel presents in
his brief to ascertain whether it entitles Appellant to relief. In reviewing the
lower court’s decision to deny Appellant’s PCRA petition, we examine whether
the PCRA court's determination “is supported by the record and free of legal
error.” Commonwealth v. Mitchell, 636 Pa. 233, 244, 141 A.3d 1277,
1283–84 (2016) (citations omitted). In order to be eligible for PCRA relief,
the petitioner must prove by a preponderance of the evidence that his
conviction or sentence resulted from one or more of the enumerated
circumstances found in 42 Pa.C.S. § 9543(a)(2), which includes the ineffective
assistance of counsel.
“It is well-established that counsel is presumed effective, and to rebut
that presumption, the PCRA petitioner must demonstrate that counsel's
performance was deficient and that such deficiency prejudiced him.”
Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121, 132 (2012) (citing
-5-
J-S37038-18
Strickland v. Washington, 466 U.S. 688, 687-91 (1984)). To prevail on an
ineffectiveness claim, the petitioner has the burden to prove that “(1) the
underlying substantive claim has arguable merit; (2) counsel whose
effectiveness is being challenged did not have a reasonable basis for his or
her actions or failure to act; and (3) the petitioner suffered prejudice as a
result of counsel's deficient performance.” Commonwealth v. Sneed, 616
Pa. 1, 17, 45 A.3d 1096, 1106 (2012) (quoting Commonwealth v. Pierce,
567 Pa. 186, 786 A.2d 203, 213 (2001)). “A petitioner establishes prejudice
when he demonstrates “that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different.” Commonwealth v. Johnson, 600 Pa. 329, 345–46, 966 A.2d
523, 532–33 (2009) (quoting Strickland, 466 U.S. at 694). The failure to
satisfy any one of the three prongs will cause the entire claim to fail. Sneed,
616 Pa. at 18, 45 A.3d at 1106 (citation omitted).
In the amended petition, PCRA counsel contended that trial counsel was
ineffective in failing to communicate to Appellant a plea offer conveyed by the
Commonwealth prior to trial. This Court has held that a defendant may
establish a claim of ineffectiveness of counsel when defense counsel does not
fulfill the “duty to communicate formal offers from the prosecution to accept
a plea on terms and conditions that may be favorable to the defendant.”
Commonwealth v. Hernandez, 79 A.3d 649, 653 (Pa.Super. 2013) (quoting
Missouri v. Frye, 566 U.S. 134, 145, 132 S.Ct. 1399, 1408 (2012)).
-6-
J-S37038-18
However, our review of the record clearly refutes any claim that
Appellant was not fully advised of the prosecution’s plea offer. At a hearing
held on April 1, 2013, the prosecution placed the specific terms of its plea
offer on the record in open court, along with its intent to pursue an additional
charge under the Uniform Firearms Act (persons not to possess firearms; 18
Pa.C.S.A. § 6105) if Appellant chose to decline the plea offer. Thereafter,
both the trial court and trial counsel discussed this plea agreement with
Appellant in open court to ensure that Appellant understood its terms and the
potential consequences of rejecting the agreement, proceeding to trial, and
facing sentencing upon conviction of the proposed charges. The following
exchange occurred at the April 1, 2013 hearing:
[Prosecutor:] … [T]he Commonwealth would like to place the
offers on the record … As regards to [Appellant], we would ask
that he plead guilty to Information number five, conspiracy to
commit robbery, a felony of the first degree. The recommended
sentence would be three and a half to seven years concurrent with
Information number eight. Restitution in the amount of $41 to
Mr. Davis, again joint and several with Mr. Freeman. And we
would ask that he submit a DNA sample. As indicated we would
ask [Appellant] to plead guilty to Information number eight, which
is firearms not to be carried without a license. It is a felony of the
third degree. The recommended sentence would be three and a
half to seven years. As I have indicated to defense counsel if
[Appellant] were not to accept this offer, the Commonwealth
would seek leave to amend the information. [Appellant] is a
person not to possess. And his guidelines for that offense would
be 60 to 60, he would be starting at five years there. That
concludes the two offers made to [Appellant], Your Honor. And
the Commonwealth would leave them both open until the next
listing.
[Trial Court:] [Defense counsel,] have you explained the offer to
your client?
-7-
J-S37038-18
[Trial counsel:] Your Honor[,] earlier this afternoon there was no
offer, so this is the first time [Appellant] is hearing of the offer.
But just to clarify, [Appellant] one thing that the Commonwealth
stated was that this offer will remain open until the next – until
your trial date. Should you choose not accept this offer, they will
[amend the information] to add a charge. The charge of person
not to possess a firearm. The guidelines for that offer start at 60
months or five years. So this is certainly a material thing that you
and I had not discussed. So I just wanted to make sure you
understood what the DA is referring to when he provided that
offer. Do you understand that?
[Appellant:] Yes.
[Trial counsel:] And you understand that the offer is three and a
half to seven years on the firearms not to be carried without a
license charge?
[Appellant:] Yes.
[Trial counsel:] And a concurrent three and a half to seven years
on a conspiracy to robbery charge?
[Appellant:] Yes.
[Trial counsel:] And those charges are concurrent, so they would
be running at the same time. Do you understand that?
[Appellant:] Yes. I ain’t taking it though.
[Trial counsel:] Okay.
[Trial court:] And if the offer is rejected and we proceed to trial[,]
is the Commonwealth going to be seeking consecutive, rather than
concurrent sentences?
[Prosecutor:] Most likely, Your honor. Yes.
[Trial court:] So [Appellant,] to have an idea where you stand. If
you go to trial and you are convicted, I am required to consider
not only mandatory minimum sentences, but also sentencing
guidelines. I don’t know what your guidelines are. On the charges
where there is no mandatory minimum, the guidelines would be
-8-
J-S37038-18
computed based on the seriousness of the offenses, and these are
serious offenses, they are felonies. One of them being a felony of
the first degree and your prior record. I don’t know your prior
record, but that would have a bearing. In any event, if you decide
to reject the offer, the Commonwealth will be seeking at least one
mandatory minimum sentence, and that would be five to ten
years. And then the Commonwealth has indicated that it will in
all likelihood be seeking separate and consecutive sentences on
the other offenses. Do you understand that?
[Appellant:] Yes.
[Trial counsel:] Do you have any questions about it?
[Appellant:] No.
[Prosecutor:] And your Honor just to follow up on what you said,
I have made a copy of his guidelines. For counts three, five, and
eight just for illustration. And I have given a copy to [trial
counsel]. As you indicated [Appellant] does have a prior record
score of five, so that has contributed to the inflated guideline
ranges.
[Trial court:] What are the guidelines on count five and eight?
[Prosecutor:] Well on count five the standard range is 66 to 78
months, Your Honor. On count eight his standard range is 42 to
42.
[Trial Court:] So the Commonwealth’s offer to you, [Appellant],
is considerably below your standard range guidelines. Do you
understand that?
[Appellant:] Yes.
[Trial court:] Do you have any questions about the guidelines?
[Appellant:] No.
***
[Trial court:] The offers will remain open until the trial date which
will be April 22nd.
-9-
J-S37038-18
[Trial counsel:] Your Honor, may I just explain to [Appellant] what
the charge of person not to possess a firearm is? I don’t think he
understands.
[Trial court:] Yes.
[Trial counsel:] The charge that the Commonwealth is
threatening to add at the next listing is a charge called persons
not possess a firearm. Meaning that if you have a prior conviction
-- if you have a certain prior conviction in this case a prior felony
conviction, you cannot possess a firearm. The guidelines for that
charge along start at five years, five to ten years. You are
currently not charged with that, however they are going to seek
to amend to add that charge. Do you understand?
[Appellant:] Yes.
N.T. Hearing, 4/1/13, at 3-9, 13-14.
After the terms of the agreement were clearly explained to Appellant on
the record, Appellant confirmed that he understood the agreement and
indicated that he had no questions regarding the offer. Thereafter, Appellant
rejected the plea agreement and proceeded to trial.
Accordingly, based on our review of the record, there is no basis to claim
that trial counsel was ineffective in failing to advise Appellant of the plea
agreement offered by the Commonwealth that had terms favorable to
Appellant.
As a result, our own review of the case to consider whether the PCRA
court erred in dismissing Appellant’s petition reveals no non-frivolous issues
of arguable merit. We, therefore, grant counsel’s Petition to Withdraw and
affirm the PCRA court’s order dismissing Appellant’s petition.
Petition to Withdraw as Counsel granted. Order affirmed.
- 10 -
J-S37038-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/24/18
- 11 -